Board Case Update: 05/31/11

Daniel S. Frazer, 63 Van Natta 1098 (2011)

(ALJ Marshall)

SAIF requested review of the ALJ’s order that directed it to reimburse claimant for investigation expenses, under ORS 656.386(2)(a). On November 17, 2009, a prior ALJ set aside SAIF’s denial of claimant’s claim and awarded reasonable expenses and costs for records, expert opinions and witness fees. That order was not appealed. SAIF reimbursed claimant for everything except investigation costs. Claimant requested a hearing.

SAIF contended that an investigator’s fee was not reimbursable under ORS 656.386(2)(a). That section provides that “[i]f a claimant finally prevails over a denial * * *, the court, board or Administrative Law Judge may order payment of the claimant’s reasonable expenses and costs for records, expert opinions and witness fee.” The statute does not expressly allow reimbursement of fees charged by an investigator.

The investigator hired by claimant’s attorney researched records and located witnesses. The Board found that such activity satisfied the “costs for records” criteria set forth in the statute, and OAR 438-015-0005(8) which allows costs for “things and services reasonably necessary to pursue a matter.” Cough it up, SAIF

Penalty: 10% of amounts due after first installment; $1,500 attorney fee

Moral: If you don’t want to pay, have to say why.

Clayton H. Schreiner, 63 Van Natta 1067 ( 2011)

(Order on Reconsideration)

Claimant requested reconsideration of a Board order that affirmed denial of his bilateral hearing loss claim. Claimant argued that inaccuracies in the history understood by his attending and examining physicians were “insignificant” and shouldn’t detract from their opinions. His doctors understood that, before December 2007 and through December 2008, he either wore no hearing protection, or did so inconsistently when in the presence of industrial noise. The record, however, established that claimant “normally” wore hearing protection on the job from 1998 through 2001, specifically when in a noisy environment. He “really got into wearing protection” during his last years of employment, and he wore it 90-100% of the time in 2006 and 2007. His experts did not know any of this. Affirmed

Lance E. Ford, 63 Van Natta 1069 (2011)

(ALJ Rissberger)

The self-insured employer requested review of an Opinion & Order that set aside its denial of claimant’s left wrist condition claim. On review, employer argued that the left wrist condition should be analyzed under ORS 656.802, as the product of an occupational disease process. This would elevate claimant’s burden of proof to “major contributing cause.” Claimant argued that the condition developed over a short period of time and should be analyzed as an injury, subject to the material cause standard of proof.

The seminal case in this situation is Smirnoff v. SAIF, 188 Or App 438 (2003), which stands for the proposition that an injury arises from an identifiable event or has an onset traceable to a discrete period of time. The determining factor is whether the condition itself, not its symptoms, occurred gradually, rather that suddenly. If the condition arises over a relatively short period of time, it will be analyzed as an injury.

In this case, claimant’s left wrist symptoms arose, “fairly suddenly” after one day of work, unloading boxes. The Board determined that, under the circumstances, his condition was the result of an injury, rather than a disease process. Affirmed

Debra S. Stallard, 63, Van Natta 1078 (2011)

(ALJ Smith)

SAIF requested review from an Opinion & Order that found claimant’s claim to have been prematurely closed and that she was entitled to a 1% PPD award. The attending physician determined that claimant’s left shoulder contusion condition was medically stationary, and that because it had completely resolved there was no need for a closing examination. Claimant alleged that, because a closing exam had not been performed, her claim could not be closed.

The Board disagreed with claimant’s position, citing Michael D. Kennedy, 59 Van Natta 2150 (2007) in which it determined that a closing examination is not necessary if the attending physician determines the worker to be medically stationary “with no impairment.” In other words, “no impairment” means “no impairment” and there is no need for a perfunctory closing examination to measure permanent impairment. Reversed